U.S. v. Sanabria, 76-1016

• Decision Date: 29 December 1976
• Docket Number: No. 76-1016,76-1016
• Citation: 548 F.2d 1
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellant, v. Thomas SANABRIA, Appellee.

Page 1

548 F.2d 1

UNITED STATES of America, Appellant, v. Thomas SANABRIA, Appellee.

No. 76-1016.

United States Court of Appeals,

First Circuit.

Argued June 3, 1976.

Decided Dec. 29, 1976.

Frederick Eisenbud, Atty., Dept. of Justice, Washington, D. C., with whom James N. Gabriel, U. S. Atty.; Stephen H. Jigger, Sp. Atty., Dept. of Justice, and Sidney M. Glaser, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellant.

Francis J. DiMento, Boston, Mass., with whom DiMento & Sullivan and Donald G. Tye, Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This case presents several substantial questions concerning the conditions under which the United States may appeal from an adverse decision in a criminal case.

In November, 1972, defendant-appellee Thomas Sanabria and fifteen others were indicted for conducting an illegal gambling business, encompassing both a numbers and a horse betting operation, in violation of 18 U.S.C. § 1955. ¹ The one count indictment charged them with "accepting, recording and registering bets and wagers on a parimutual (sic) number pool and on the result of a trial and contest of skill, speed, and endurance of beast . . . a violation of the laws of the Commonwealth of Massachusetts, to wit, M.G.L.A. Chapter 271, Section 17 . . . ." Following some three years of pre-trial activity, a jury trial of defendant and ten co-defendants commenced on November 10, 1975 in the federal district court for the district of Massachusetts. At trial, the government introduced evidence tending to show that defendants were involved in an illegal numbers and horse betting gambling business in Massachusetts.

After both sides had rested, defendant moved for a judgment of acquittal. He argued first that there was insufficient evidence of his involvement in horse betting gambling to support a conviction upon that theory and second that, regardless of the evidence of numbers activity, the government had failed sufficiently to allege a violation of the Massachusetts laws prohibiting such conduct and could not prosecute him on a numbers theory. Defendant reasoned that the only Massachusetts statute which was cited, Mass.Gen.Laws c. 271 § 17, has been interpreted by the Massachusetts courts as not to prohibit numbers activity, which, under the case law, is proscribed exclusively by id. § 7, see Commonwealth v. Boyle, 346 Mass. 1, 189 N.E.2d 844 (1963). He therefore urged that there had not been a sufficient allegation of illegal numbers activity to permit the government to obtain a guilty verdict on that basis. This objection to the indictment had not been raised either in the pre-trial motions or in any objection to the introduction of evidence during the trial. ²

The district court was persuaded by defendant's argument regarding Massachusetts law, and presumably because it thought that the citation of § 17 alone could have led a criminal defendant to believe that the government was not proceeding on a numbers theory, it held that the policy that criminal defendants receive notice of the charges against them would be violated if the numbers aspect of the case were permitted to proceed. Having concluded that the indictment could not be interpreted to charge accepting bets on a pari-mutuel numbers pool, the district court excluded the government's evidence of numbers activity. It then focused on the evidence of horse betting and, finding it insufficient, entered a judgment of acquittal for defendant.

The government now seeks appellate review of the district court's action. It concedes that there can be no review of the district court's ruling that there was insufficient evidence of horse betting to support a conviction. However, it seeks review of the district court's decision to exclude the charge based upon numbering activities, and it requests that we order a new trial on this portion of the indictment. If we have appellate jurisdiction, there is no question but that the government is entitled to the relief it seeks. ³ In United States v. Morrison, 531 F.2d 1089, 1094 (1st Cir. 1976), which had not been decided at the time of the district court's action, we held that an indictment which was identical to that in the case at bar in all significant respects was sufficient to place the criminal defendant on notice that numbers activity was a basis upon which the government sought to establish criminal liability under § 1955. Defendant concedes that Morrison is controlling if we have appellate jurisdiction.

Since the government may appeal an adverse judgment in a criminal case only when authorized by statute, see United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892), the first question we must face is whether a statute authorizes this appeal. The relevant statutory provision, 18 U.S.C. § 3731, provides in pertinent part:

"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

"The provisions of this section shall be liberally construed to effectuate its purposes."

In deciding whether the present appeal is authorized thereunder, we must determine, first, whether the district court's action was the dismissal of an indictment "as to any one or more counts" within the meaning of § 3731, and, second, whether the double jeopardy clause will prohibit further proceedings against the defendant under § 1955 based upon allegations of numbers activity. The latter question, of course, pertains both to our appellate jurisdiction and to the constitutionality of such further proceedings against defendant.

The first issue arises because the district court's action was not formally a dismissal of an entire count. The portion of the indictment that charged pari-mutuel numbers activity was part of the same count that charged horse betting; after the district court removed the numbers charge from the case, the single count of the indictment still charged a crime. Although the district court did not remove an entire count from the indictment, its action clearly eliminated one basis for imposing criminal liability on defendant. ⁴ We think this fact is sufficient, assuming no double jeopardy bar, to make the district court's action reviewable at the behest of the government. ⁵

By permitting appeals from orders dismissing single counts of an indictment, Congress manifested an intention that district court orders eliminating a single ground of criminal liability from a prosecution would normally be appealable. We can think of no substantial policy which would be served by prohibiting government appeals from an order dismissing a criminal charge when that charge did not formally comprise an entire count of an indictment. The sole practical effect of such a narrow construction of § 3731 would be that, in such cases only, the government would be obliged to reindict the criminal defendant before attempting to reprosecute. There is no indication, either in the statute or its legislative history, that the use of the word "count" was intended either to limit the instances in which the government could appeal or to force the government, in certain instances, to reindict the criminal defendant before it could attempt to proceed against him anew. On the contrary, the legislative history indicates that Congress intended to remove all statutory barriers to government appeals and permit appeals from an unfavorable termination of a criminal charge whenever the double jeopardy clause does not prohibit further proceedings. See United States v. Wilson, 420 U.S. 332, 337-39, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). Noting also that the last sentence in § 3731 provides that it is to be "liberally construed to effectuate its purposes", we interpret the word " count" in the statute to refer to any discrete basis for the imposition of criminal liability that is contained in the indictment. Here, the district court effectively dismissed the portion of the indictment charging a § 1955 violation based on the defendant's alleged numbering activities. Under our construction of § 3731, therefore, this order is appealable if the double jeopardy clause does not bar a future prosecution on this charge.

Turning to this question, we find that the issue of the double jeopardy consequences of a dismissal of a count of an indictment by reason of its failure to provide the criminal defendant with sufficient notice of the charges against him has not been addressed by the Supreme Court. However, a series of recent decisions of the Court persuades us that the policies embodied in the double jeopardy clause will not be offended if defendant is prosecuted sometime in the future for allegedly engaging in numbers activities under circumstances constituting a § 1955 violation.

The double jeopardy clause comes into play only when the criminal defendant has previously been "placed in jeopardy" on the charges in question. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Here, there appears to be no question but that defendant was placed in jeopardy on the numbers charge since the jury was empaneled and sworn, see Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Although it might plausibly be argued that the district court's conclusion that defendant had not been charged on a numbers theory prevented jeopardy from attaching, cf. Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904), it apparently is settled that jeopardy attaches upon the institution of trial proceedings, even if the indictment is defective. See Illinois v. Somerville, 410 U.S. 458, 466-67, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United...